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2016 (7) TMI 388 - ITAT PUNE

2016 (7) TMI 388 - ITAT PUNE - TMI - Deduction u/s. 80IB(10) - Housing project ‘Sanskriti’ comprising of buildings D, E and G developed by the assessee - reason for rejecting the claim of the assessee is that the project of the assessee is not complete within the specified time/due date in accordance with the clause (a) of section 80IB(10) of the Act - Held that:- The Hon'ble Bombay High Court in the case of Commissioner of Income Tax Vs. Hindustan Samuh Awas Ltd. (2015 (10) TMI 2306 - BOMBAY HI .....

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The Assessee : Shri M.K. Kulkarni For The Revenue : Shri Suhas S. Kulkarni ORDER PER VIKAS AWASTHY, JM : The appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-II, Pune dated 30-08-2013 for the assessment year 2009-10. 2. The appeal is time barred by 39 days. The assessee has filed an affidavit citing reason for delay in filing of appeal. A perusal of the same shows that the delay in filing of appeal has been attributed to the absence of assessee in .....

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he assessee recovered from illness. After perusal of the contents of the affidavit we are satisfied that the delay in filing of appeal is not deliberate or willful. The assessee has been able to explain the reason for delay in filing of the appeal. Accordingly, the delay of 39 days in filing of appeal is condoned and the appeal of the assessee is admitted to be heard and disposed off on merits. 3. The brief facts of the case as emanating from records are: The assessee is a developer and builder. .....

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. 80IB(10) on the aforesaid project comprising of buildings D, E and G. The Assessing Officer during the course of scrutiny assessment proceedings rejected the claim of the assessee on ground that the completion certificate dated 30-11-2009 issued by the PCMC is after the due date of completion of project as per the provisions of section 80IB(10)(a) of the Act. Aggrieved by the assessment order dated 23-12-2011, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals). Th .....

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l for the assessee contended that the project was complete in all respect in December, 2008 itself. The ld. Counsel referred to the completion certificate issued by the Architect, placed at page 127 of the paper book. The ld. Counsel submitted that the assessee had applied for the completion certificate to the PCMC on 25-03-2009 i.e. before the last date of completion of project as envisaged u/s. 80IB(10)(a). The PCMC issued certificate on 30-11- 2009. The delay in issuance of certificate cannot .....

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B(10) was rejected on similar ground. The Co-ordinate Bench of the Tribunal in ITA No. 625/PN/2012 decided on 31-07-2013 had remitted the matter back to the Assessing Officer for deciding the issue afresh after considering the additional evidence filed by the assessee. Now, the matter is pending before the Commissioner of Income Tax (Appeals). 5. On the other hand Shri Suhas S. Kulkarni representing the Department vehemently supported the findings of Commissioner of Income Tax (Appeals) in rejec .....

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ed the orders of the authorities below. We have also considered the documents which were referred during the course of making submissions by the ld. Counsel for the assessee and decision on which the reliance has been placed. The only issue raised in the appeal is with respect to disallowance of deduction u/s. 80IB(10) on the housing project Sanskriti comprising of buildings D, E and G developed by the assessee. The reason for rejecting the claim of the assessee is that the project of the assess .....

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or to that. In support of his submissions the ld. Counsel for the assessee has placed on record the completion certificate dated 25-12-2008 issued by the Architect of the project at page 127 of the paper book and the occupation certificate issued to the flat owners at pages 7 to 125 of the paper book. The contentions of the ld. Counsel of the assessee is that the assessee applied for issuing completion certificate to PCMC on 25-03-2009, the delay in issuance of completion certificate by PCMC can .....

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ed for exemption u/s. 80IB(10) of the Act. The relevant extract of the judgment of Hon'ble High Court is as under : 11. The question we raise here is whether the explanation introduced an element of harshness to such an extent that it rendered the main provision nugatory? In our view, the explanation is introduced recently to put an end to a controversy, which might arise before the Assessing Officer about the date of completion. The intention of the legislature in providing explanation to f .....

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n architect who is appointed for supervising the construction work. He is a professional who would declare that the project is complete. Unfortunately, Sub-section (10) and the explanation do not give any importance to the issuance of such Completion Certificate by the concerned architect. It gives importance only to the certificate of Municipal authority. It is common knowledge that an application for Completion Certificate submitted to the Municipal Authorities is accompanied by a Completion C .....

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one decide the date of completion of the project? The answer is in negative. 12. In the facts of this case, admittedly, the Architect of the project had given a certificate prior to 31.03.2008. The respondent submitted application to the Municipal authority along with such certificate well in time on 25.03.2008. It seems that the Municipal authorities directed the respondent to deposit certain amount for issuance of Completion Certificate on 27.03.2008 and the amount was accordingly deposited on .....

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deciding the matter afresh. A perusal of the order of Co-ordinate Bench of the Tribunal in assessee s own case in ITA No. 625/PN/2012 for the assessment year 2008-09 decided on 31-07-2013 reveal that the claim of deduction u/s. 80IB(10) in assessment year 2008-09 was denied to the assessee on the similar grounds. The relevant extract of the findings of the Co-ordinate Bench of the Tribunal are reproduced here-in-under: 7. After going through the material on record and perusing the material on re .....

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ient if it was submitted once when the ensuing project was completed. The lower authorities have denied the claim of deduction u/s 80-IB(10) of the Act for the profits of housing project for A.Y. 2009=-09 on the parity of reasoning that the completion certificate was granted by authorities effective from 4-5-2009 and therefore, the project was not complete prior to 31-3-2009. The claim of deduction was negated by the lower authorities holding that the project was not complete by 31-3-2009. The s .....

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thority approving the project certifying that the project was supervised by her and has been completed according to plans sanctioned being dt. 25-3-2009. (b)The Licence to work the Lift Location 223/1, 223/3, 228/5, 228/6 dt. 09-03-2009. (c) The Licence to work the Lift -A/ 4109/11/08, 228/5, 6 dt. 31-3-2009. (d) The Licence to work the Lift Location 223/2, 228/5, 228/6 dt.09-03-2009 A/4110/11/08. (e) The Licence to work the Lift. 228/5, 6 dt. 31-3-2009: A/4/108/11/08. (f) Water supply NOC. Cert .....

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